September 23, 2018

Fritz's Real Hit List

Seth Finkelstein suggests that I should reexamine my “Fritz’s Hit List” feature in light of the “leeway” concept. Seth says, in effect, that it is possible, or at least it might be possible, to redefine the scope of the Hollings CBDTPA so that it covers “what 99.9% of the population uses for business or entertainment,” while not covering the items on Fritz’s Hit List.

I started Fritz’s Hit List to illustrate the extreme overbreadth of the Hollings CBDTPA. This can’t be fixed by making minor adjustments to the bill, or by relying on leeway to cover a few exceptional cases. The bill’s scope is far, far too broad. That’s the real point of Fritz’s Hit List.

This raises the obvious question of whether the bill can be fixed. Is it possible to redefine “digital media device” so that it is broad enough to cover the things it “needs” to cover, yet narrow enough to leave out dolls, dictaphones, and dog toys?

That’s harder than it sounds. I don’t know how to write such a definition. I haven’t seen anybody else offer a good definition either. The CBDTPA’s authors gave us a definition that is pretty far off.

So here is my challenge to the advocates of the Hollings CBDTPA: When you respond to Fritz’s Hit List, don’t just say, “That isn’t what we meant.” Tell us – specifically – what you did mean.

Wishful Thinking

In recent debates about copyright and technology, pro-regulation people have started using an interesting rhetorical tactic. Rather than trying to rebut challenges to the workability of their proposed solutions, they talk instead about how intensely they want their proposals to be workable.

For example, my Fritz’s Hit List series points out a serious flaw in Sen. Hollings’ regulatory proposal. Here is the response from the Senator’s office (from the Oct. 21 New York Times):

Andy Davis, a spokesman for Mr. Hollings, said the technology-minded critics of the bill were “missing the thrust of the senator’s argument,” which is that there is need for more protection of copyright works if online content and broadband Internet access are to flourish.

I don’t doubt that Senator Hollings wants very badly for there to be a solution to this problem. But wishing for a solution is not the same thing as having one.

The same phenomenon is at work when pro-regulation people “debate” the regulation issue by repeating statistics about copyright infringement. By now, everybody knows that there is a serious problem with copyright compliance, and (almost) everybody wishes for a solution to that problem.

Again, saying that you want a solution doesn’t imply that a solution is possible. And it certainly doesn’t imply that the “solution” you are currently peddling is any good.

"Digital Media Device" Definition from the Hollings CBDTPA

Several readers have asked me to post the precise definition of “digital media device” from the Hollings CBDTPA. Here it is:

DIGITAL MEDIA DEVICE. – The term “digital media device” means any hardware or software that –

(A) reproduces copyrighted works in digital form;

(B) converts copyrighted works in digital form into a form whereby the images and sounds are visible or audible; or

(C) retrieves or accesses copyrighted works in digital form and transfers or makes available for transfer such works to hardware or software described in subparagraph (B).